The True Lawyer
Closely associated is another aspect. Nineteenth-century pandectist legal scholarship culminated in Windscheid's three-volume treatise. Since it was based on the sources of Roman law it appeared antiquated and 'scholastic' to those who wanted to emancipate contemporary law from legal history.[129] But it was also, decidedly, not a work of legal history.
Thus, it contains a fairly extensive exposition[130] of the presupposition doctrine as it had been developed by Windscheid himself.[131] As early as 1856 this doctrine was seen as an attempt 'courageously to rise above the tyranny of Roman law'.[132] Windscheid himself considered the sources which appeared to recognize the doctrine in fact though not in name as 'building material for the edifice' which he intended to construct and he freely admitted that there were other sources contradicting his view.[133] Obviously, the presupposition doctrine was in accordance neither with classical Roman law nor with the law of the Corpus Juris. This was pointed out by the Imperial Court (Reichsgericht): it refused to apply a doctrine for which there was 'no foundation in the sources at all'.[134] Even for the Imperial Court, however, historical authenticity was not the decisive point: central to the Court's rejection of the doctrine was the fear that legal certainty would otherwise be gravely jeopardized.[135] How, then, was it possible, asked Otto Lenel,[136] [137] that 'a scholar such as Windscheid could hit upon a theory, so blatantly untenable' from the point of view of the Roman sources? Because he had proved, when he created (or 'constructed') it, to be 'a true lawyer' (wahrer Jurist). For the true lawyer is 'a man about whom stand ranged the concepts of his law, like marble statues, sharp and cold, and yet familiar figures, awaiting only the wave of his hand to set themselves in motion and accomplish their work; {a man] who knows how, at one and the same time, to serve his concepts and how to rise above them in conscious freedom'.24- To rise above his concepts in conscious freedom: a true legal historian could hardly identify himself with statements such as this. Nor would he easily have likened the colourful mixture of case decisions, legal opinions and rules, commentary, disputes, and excerpts from textbooks and monographs contained in the Digest to 'marble statues, sharp and cold'. Thus, it was hardly accidental that a scholar such as Otto Lenel became one of the harshest critics of the presupposition doctrine.[138] [139]1.
More on the topic The True Lawyer:
- INTELLECTUAL FORMATION: WHAT'S ON THE LAWYER'S MIND
- True intention and justifiable reliance
- This chapter addresses the spirit, style, and character of the Roman jurists, the true architects of the Roman legal system.
- 2.1 INTRODUCTION
- 4.2 INTERNATIONAL LAw/lNTERNATIONAL HISTORY: SPECIFIC PROBLEMS, CONCEPTUAL FRAMES, INHABITED WORLDS
- Servius Sulpicius Rufus
- Introduction
- The Example of Delictual Liability for Others
- CONCLUSIONS
- Reservatio mentalis
- 2. POSSESSION
- Locare and conducere
- "Contributory negligence" in Roman law
- 2. From "Konsumptionskonkurrenz" to "Solutionskonkurrenz"
- Effects of Codification in General